Kenya policy tracker

This policy and legislation tracker provides summaries, status and concerns for critical policies of concern to dryland areas of Kenya, and recommended action. For comments, questions or updates on these legislations contact DLCI at info@dlci-hoa.org.

This is a database of key reference documents by different authors and organisations on critical issues for resilience in the drylands of the Horn of Africa. They have also been categorised according to a DLCI subject areas, which can be found at: (click to download). This database is no means comprehensive but aims to provide a useful resource for people new to the region or the drylands. Suggestions on additions and comments to this database are welcome, and can be sent to: info@dlci-hoa.org.

Draft Legislation

Status

Concerns

Recommended Actions

GENERAL

Equalization Fund – Constitutional Amendment Bill on the regulation.

Bill passed by National Assembly and senate. (see DLCI brief)

The need for more focus on new projects that reduce marginalization and particularly marginalized areas not just counties. Need for more transparency in use of appropriated funds especially on cost of administration. Need board to go beyond Principal Secretaries. Need to consider appointment of independent board.

PPG to develop action plan that includes follow up with the Board and Treasury to release funds for completed projects, and sponsor bill to allow the parliament to review the regulation.

Draft Equalization Fund Bill sponsored by PPG

Draft is ready and sponsored by member of PPG

Different opinions about the fund management expressed between Counties and national institutions

Mediation to resolve between the competing ideas and interests about the fund.

2nd Marginalisation Policy and CRA formula

CRA has developed the 2nd marginalization Policy (2018-2022) that now put more emphasis on improving fund implementation and focus target to deprived sub locations in 34 Counties as new beneficiaries of fund.

Concern that Equalization Fund is small and is aimed at targeting 1421 sub location in 100 constituencies may be thinly spread. County Government and PPG members not in agreement on the new policy focus

PPG is considering a parliamentary action that includes amendment to constitution to protect Equalization Fund Kitty allocation. FCDC is considering a judicial intervention on 2nd policy direction. Stakeholders want to see increase from 0.5 percent to at least 2-3% or get parliament to approve the national audited accounts to achieve desired impact on issues of marginalization in the original 34 beneficiary counties.

Draft Legislation

Status

Concerns

Recommended Actions

LAND

Community land bill

Bill enacted into law. President signed it on 21 September 2016.

Some areas still not clear. Roll out strategy needs to promote collective protection of community land and reciprocal resource agreement, not just registration, ADR and roll out strategy needs to be developed. Awareness about the Act is low among the communities in dryland areas.

Increased synergy between CSOs needed.

There seems to be discrepancies between the Taskforce Draft and Ministry gazetted Draft regulation that was also presented to the Parliament.

Follow up to ensure all concerns are addressed and that communities are informed and supported to appreciate the process of registering their land in a way that mitigates conflict and promotes reciprocal communal resource agreements and protects migration and market routes.

Community land regulations

Gazetted in December 2017. Status not clear whether they require Parliamentary approval. Reason for the delay is also unknown. Technical Task force appointed for the development of regulations for the registration of community land produced a draft. Draft Regulation was gazetted in Nov 2017 by the Ministry that was not same as the draft by the Taskforce. It was presented to Parliament and a Committee on Delegated Legislation was appointed by the House in December 2017. The Committee report indicates that it annulled regulation no.23 and no. 24 from draft proposal gazetted by the CS. The CS Lands is now expected to gazette the actual date for commencement of the operation of the Community Land Act 2016.

Proposed public notice platform is mainly through national newspaper without explicit requirement that oblige duty bearer to ensure all interested parties that includes rural communities main owners and users of community land to be adequately informed. FAO had agreed to review both drafts of the community land regulations and provide analysis of discrepancies and variances.

RECONCILE, FAO and other KAAG members to petition the Parliament before the regulation is approved.

Physical planning bill

Physical planning is too technocratic and preference is for National Land Use bill

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Land use planning policy

Finalized and gazetted as a legal document and published

Need to ensure that land use planning is done in consultation with communities and considers ASAL issues (see DLCI land use planning brief)

ILRI has been contracted to develop an annex on rangeland planning for the spatial planning guidelines

Should not allow borrowing against revenues, and should ensure communities receive adequate benefit

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Natural Resources (Benefit Sharing) Bill, 2014

Passed by the two assemblies but the President returned.Bill passed with amendments and referred to the National Assembly (in June 2015).

Concerns around % share for communities and counties, suggestions that community land management committees may administer it once established

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Petroleum (Exploration, Development and Production) Bill, 2017

Sponsored by Hon. Aden Duale. Dated 25/09/2017 and maturity date is 8/10/2017. 1streading done on 8/11/2017.Bill withdrawn before the 2nd reading stage. New draft to be tabled afresh in February 2018.New proposal of 10% community benefit and 20% county benefit being championed by VP and Duale.

Capping clause of the revenues sharing can still restrict community and county to receive it full share.No provision to prevent Borrowing against future revenues.
Transparency and accountability in revenue management.Contract disclosure.Local community Trust Fund and the composition of its Board of Trustees.Local content.

PPG to lobby for increase of capping

Wildlife Conservation and Management (Amendment) Bill 2017

Wildlife Regulations (19) of them

First sponsored by the national assembly committee on Environment and Natural resources in 2016;

Currently, Bill being moved by Ministry of Tourism and Wildlife, following recess by parliament for elections; Ministry has proposed Miscellaneous amendments , pending other amendments through the Wildlife (Amendment) Bill;

A Statute Law (Miscellaneous Amendment Bill) No. 12 of 2018

Removal of communities from the KWS board and the proposed governing body of the Wildlife conservation trust fund thus de-linking them from national wildlife governance;

The re-structure of County Wildlife Conservation and Compensation Fund from 47 to 8 is likely to affect devolution of wildlife governance;

Communities through conservancies to have representation in KWS board and the governing body of the proposed Wildlife Conservation Trust Fund;

Other recommendations is clarity of terms related to community conservation;

Finalisation and gazetting of regulations to enable implementation of the Wildlife Act

Education

A Draft Bill was developed by NACONEK and a member of PPG agreed to sponsor the Bill

There is a lot of concerns about the new policy of lowering entry grades for Diploma Course and PI teachers Training. Teacher management by TSC in Dryland areas. TSC removed all union teachers from NEP siting insecurity and all public schools in three Counties of NEP remained closed for one term due to lack of teachers.

NACONEK to finalize the Bill and hand it over to the Sponsoring Member of Parliament, MP Wajir East. Hon. Rashid Kassim.

Basic Education Act Amendment, 2015

Passed, but NACONEK has not got the resources or power to make impact on nomadic education, still no funding for distance education, limited reach of adult literacy

Approved by cabinet in 2017, task force has been set up to finalize and present to Parliament

Lack of consultation. Too much control by national government. Provides for massive increase in irrigation in ASALs without learning lessons of the past including water and land consideration, independent social and environmental impact assessments (see DLCI briefs)

Revision of the National livestock policy, 2008 (Sessional paper No 2 of 2008)

Undergoing review and currently it is in the Ministry being finalized before stakeholder validation to align it with the Constitution

Need to included devolved functions
There is need for broader stakeholder engagement – including the counties and intergovernmental authority

Engage Dr Wanga – SDL for more in-depth discussion going forwardCall for a stakeholder forum to discuss the revised Policy

Livestock Identification and Traceability Policy, Draft 2016

Drafted, needs stakeholder engagement

Ensure identification of livestock through market chain to promote marketingEnsure there is alignment of the draft policy with industry best practices for LITS through the private sector.Needs fast tracking

Call for a stakeholder forum to discuss the draft Policy

Kenya Livestock Products Development and Promotion Board Policy

Primary suggestion came from the review of parastatals in Kenya by the Abdikadir led commission. President passed executive order to form this body. Abdinoor made a private members bill. The 3rd reading was adjourned. Even its establishment was budgeted in the last budget, however adjournment of the 11th Parliament halted this process. A new bill has now being drafted and taken over by the MP for Mandera North. Hon. Bashir Abdullahi. It has passed through the Budget committee in 2018 and Treasury. Waiting to be introduced to the House

Private sector provision with government focus on diseases surveillance and response,Need for counties to fund outreach

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Drought/emergencies

Drought Emergency Fund was established through the Senate bill that was sponsored by member of PPG and passed. Regulation for operation and management of the Fund has being developed. there is issues of mandate overlap of institutions that is required to oversee the fund. AG has provided legal opinion on the way forward.

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NADIMA - National Disaster management act

Still being pushed through Parliament, consultations carried out by the World Bank in 2016.

Still no clarity on relationship with NDMA and threatens to undermine the NDMA

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Draft Legislation

Status

Concerns

Recommended Actions

PEACE AND SECURITY LEGISLATION

Sessional Paper No. 5 of 2014 on National Policy for Peace Building and Conflict Management

That was passed by the Parliament on 27th August, 2015.

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Needs to be passed urgently

Draft bill on the National Peace Council

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National policy on small arms and light weapons

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Needs to be urgently passed as current legislation has only 2000KSh fine for possessing of an illegal firearm

Fire arms (amendments) bill

In NA, proposed stringent background checks for firearms owners

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Passed

National security (amendment bill)

The national security amendment bills 2014 was assented to on 1/10/2014 and Gazetted on 30/12/2014.

New development plan??
Despite the fact that Community land Act is not operation. LAPSSET require spaces on community land that require to be converted to public for LAPSSET corridor development.

There is an assumption that land is unoccupied and therefore not eligible for compensation. Although recent announcement of some compensation for community land. Causing conflict in some areas e.g. Meru need much more community consultation and awareness raising. Activities by CSOs not coordinated.

Look at inter-generational benefits, how can future generation benefit and transit fees for communities that own the land

Isiolo Mega dam (crocodile jaws)

Lack of public consultation led to protests at ESIA

Planning to redo

Cordaid carrying out a study with UNON

Coal plant in Kitui

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Will have major implication in ASALs as many of the 40 mines that are linked are there e.g. Garissa and Tana River

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ID issuing in ASALs

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Many people are unable to get IDs and therefore receive cash transfers

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Draft Legislation

Status

Concerns

Recommended Actions

COUNTY LEGISLATION

Sale yard bills

Finalized

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Climate adaptation fund bills

Passed in Wajir, In draft in Isiolo, Garissa, Kajiado, Makueni

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Livestock strategies

Marsabit and Isiolo finalized, Wajir livestock policy went through consultations

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Prototype rangeland bill

Wajir drafted but not passed, Mandera, Garissa and Marsabit developing

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The prototype should be used to link to the water bills and the spatial plans